People v. Lavera CA2/4

Filed 11/8/22 P. v. Lavera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B316816
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A950222
v.
TODD LAVERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1989, a jury convicted defendant and appellant Todd
Lavera of two counts of first degree murder under a felony
murder theory of liability. In 2019, he filed a petition for recall
and resentencing under former Penal Code section 1170.95.1 The
trial court denied the petition, concluding that although Lavera
was convicted under a felony murder theory, a review of the facts
contained in the record of conviction showed, as a matter of law,
he was not entitled to relief because he was a major participant
in the underlying robberies who acted with reckless indifference
to human life. The court made this factual determination without
first issuing an order to show cause or holding an evidentiary
hearing. Lavera appealed, and in case number B305936, we
remanded the matter to the trial court with directions to issue an
order to show cause and hold a section 1172.6, subdivision (d)
evidentiary hearing to determine whether Lavera was entitled to
relief. On remand, following an evidentiary hearing, the trial
court denied the petition, concluding Lavera should be punished
for both murders on two independent grounds: (1) as a major
participant in the robberies who acted with reckless indifference
to human life; and (2) as a direct aider and abettor who acted
with the intent to kill. Lavera now raises several arguments why
the trial court’s order denying relief was erroneous. We affirm.
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6, with no change in text. (Stats.
2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute
as section 1172.6.
2
PROCEDURAL BACKGROUND2
“In 1989, a jury convicted Lavera of the first-degree
murders of David Thompson (count one) and Leopoldo Salgado
(count four) based on a felony-murder theory of liability. (§ 187,
subd. (a).) The jury also convicted Lavera of two counts of second
degree robbery (§ 211; counts two and three), and two counts of
attempted robbery (§§ 664/211; counts five and seven).3 The jury
found true the robbery murder special circumstance allegation
attached to count one, and found not true the robbery murder
special circumstance allegation attached to count four. The jury
also found a principal was armed with a firearm in the
commission of both those offenses (§ 12022, subd. (a)), in addition
to finding true other allegations attached to the non-murder
counts.
“Because the crimes in this case occurred in April of 1987,
the jury’s robbery special circumstance finding on count one
required a finding that Lavera harbored an intent to kill. (See
People v. Bolden (2002) 29 Cal.4th 515, 560 [for crimes committed
between the California Supreme Court’s decision in Carlos v.
Superior Court (1983) 35 Cal.3d 131 and its October 13, 1987
decision in People v. Anderson (1987) 43 Cal.3d 1104, felony-
murder special circumstance allegations required a finding of
intent to kill regardless of whether the defendant was the actual
killer or an accomplice].) However, that finding was later stricken
when the prosecution conceded a failure of proof as to Lavera’s
2 We granted Lavera’s request for judicial notice of our
opinion resolving his original section 1172.6 appeal in case
number B305936. The following quoted text is taken from the
procedural background of that opinion.
3 The trial court struck count six.
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specific intent to kill and a motion to strike the robbery special
circumstance was granted by the trial court.
“The trial court sentenced Lavera to a term of eight years
and four months plus 50 years to life, which included consecutive
terms of 25 years to life for each murder conviction. On direct
appeal, this court affirmed the judgment while remanding the
case for a modification to Lavera’s sentence that is not relevant to
this appeal.
“In 2019, Lavera filed a petition for resentencing under
[former] section 1170.95. The trial court ordered the prosecution
to file a response, appointed counsel for Lavera, and set a briefing
schedule permitting Lavera’s attorney to file a reply within 30
days of the prosecution filing a response.”
After considering briefing from both parties, “[t]he trial
court denied Lavera’s petition. In its memorandum of decision,
the court concluded Lavera was, as a matter of law, not entitled
to relief because, based on its review of the record of conviction,
the facts showed Lavera was a major participant who acted with
reckless indifference to human life.
“On March 6, 2020, after the court issued its memorandum
of decision, defense counsel filed a reply to the prosecution’s
response arguing Lavera was entitled to relief. On March 18,
2020, the trial court noted it had reviewed Lavera’s reply, but did
not change its ruling denying relief.”
Lavera timely appealed, and in case number B305936, we
remanded the matter to the trial court with directions to issue an
order to show cause and hold a section 1172.6, subdivision (d)
evidentiary hearing to determine whether Lavera was entitled to
relief.
4
On June 3, 2021, the trial court issued an order to show
cause. The prosecution filed a response, and defense counsel filed
a reply. The prosecution filed a second response. At the
evidentiary hearing held in October 2021, neither party
presented additional evidence. The prosecution noted that it had
submitted as exhibits the reporter’s and clerk’s transcripts from
Lavera’s original trial, and the court stated it would consider
those exhibits in making its ruling.4 The court permitted the
parties to file supplemental briefs, defense counsel filed a
supplemental brief, and the prosecution filed a response. On
November 12, 2021, the trial court filed a Memorandum of
Decision denying Lavera relief.
Lavera timely appealed.
DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill 1437 (SB 1437) “to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).)
SB 1437 also added section 1170.95 to the Penal Code
which, as mentioned above, was later renumbered to section
4 We granted the Attorney General’s request for judicial
notice of the reporter’s and clerk’s transcripts of Lavera’s original
trial.
5
1170.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts. (§ 1172.6,
subd. (a).) A petition for relief under section 1172.6 must include
a declaration by the petitioner that he or she is eligible for relief
based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a
request for appointment of counsel, should the petitioner seek
appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response.
The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be
extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.”
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
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manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ ([§ 1172.6], subd. (d)(1).)” (Lewis,
supra, 11 Cal.5th at p. 960.) At the hearing, the parties may rely
on the record of conviction or present “new or additional
evidence” to support their positions, and “the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
II. Analysis
As mentioned above, the trial court denied relief upon
making the factual determination that Lavera should be
punished for both murders on two independent grounds: (1) as a
major participant in the robberies who acted with reckless
indifference to human life; and (2) as a direct aider and abettor
who acted with the intent to kill. Lavera first argues the trial
court was barred under principles of issue preclusion from
denying relief based on a factual finding that he aided and
abetted the murders with the intent to kill. We need not address
this contention. Even assuming the trial court was barred from
denying Lavera relief on the basis that he aided and abetted with
the intent to kill, the court denied relief on a separate proper
basis – its factual determination that Lavera was a major
participant in the robberies who acted with reckless indifference
to human life. (See § 189, subds. (a) & (e)(3).) Notably, Lavera
does not argue this factual determination was unsupported by
substantial evidence. And, as the Attorney General points out,
the record contains substantial evidence from which a reasonable
trier of fact could conclude Lavera was a major participant who
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acted with reckless indifference to human life.5 Any purported
error by the trial court in finding Lavera ineligible for relief as an
aider and abettor who acted with the intent to kill was therefore
harmless.
Lavera next argues reversal is required because the trial
court, in making its factual findings, erroneously applied a
standard of proof akin to substantial evidence review. In support
of this contention, Lavera asserts the trial court’s written ruling
contained several statements (including “could” or “would”
language, or references to “sufficient evidence”) implicating a
sufficiency of the evidence standard. We reject his contention. At
the hearing, the trial court stated: “[T]he People’s burden is
beyond a reasonable doubt to prove ineligibility for relief at the
hearing.” In its written ruling, the court stated: “[P]ursuant to
People v. Rodriguez (2020) 58 Cal.App.5th 227 [(Rodriguez)], it
was the People’s burden of proof at the hearing to show [Lavera]
5 In support of its conclusion that Lavera was a major
participant who acted with reckless indifference life, the trial
court explained: “When analyzing [Lavera’s] role in these
crimes . . . , it is indisputable that he falls at the higher end . . . of
the spectrum closer to an actual killer. He helped plan the
robberies, he obtained ammunition for the murder weapon, he
was armed in [one of the two incidents] and was present at both
crime scenes and actively participated in both incidents, he was
aware the other participants were armed and that a co-defendant
had killed before. He did nothing to stop the killing of either
victim. After the killings [Lavera] fled [in a car] with . . . the co-
defendants as passengers, to a location where it was abandoned,
wiped the car for fingerprints and disposed of Mr. Thompson’s
wallet. He shared in the proceeds of the Thompson incident.”
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was ineligible for relief beyond a reasonable doubt.” 6 Applying
this correct standard, the court ultimately concluded: “There is no
doubt in this court’s mind that the petitioner was a major
participant in these robberies and murders and that he acted
with complete indifference to those innocent human beings . . . .”
The record also shows that the trial court weighed the evidence
as an independent finder of fact. For example, the court assessed
Lavera’s testimony that he used a toy gun during the robbery and
murder of Thompson, and ultimately concluded Lavera’s
testimony was “self-serving” and thus not credible. For these
reasons, we reject Lavera’s contention that the court erroneously
applied a standard akin to substantial evidence review. It is clear
from the record that the trial court acted as an independent
factfinder and applied the correct standard.
Lavera next argues reversal is required because the trial
court denied the petition based on an erroneous conclusion that
the jury found he personally used a gun in the robbery and
murder of Thompson. We are not persuaded. It is true that the
trial court appeared to be operating under a misapprehension
that the jury found Lavera was armed, when in fact the jury
found that a principal was armed. However, it is clear that the
trial court, independent of its perception of what the jury found,
6 Although the Supreme Court has since ordered Rodriguez
vacated and depublished due to the enactment of Senate Bill
No. 775, it nonetheless remains the case that Rodriguez’s
holding, which the trial court in this case relied upon, was legally
correct – namely that the proper standard of proof at a section
1172.6, subdivision (d) hearing is not substantial evidence, but
rather whether the prosecution has proven ineligibility for relief
beyond a reasonable doubt. (Rodriguez, supra, 58 Cal.App.5th at
pp. 243-244.)
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made its own separate factual determination that Lavera was not
credible when he offered “self-serving” testimony that the gun
was a toy. The trial court thus correctly acted as an independent
finder of fact in concluding Lavera was armed with a real gun,
and properly used this factual finding to support its conclusion
that Lavera acted as a major participant with reckless
indifference to human life. Accordingly, the purported error was
harmless under both People v. Watson (1956) 46 Cal.2d 818, 836
(Watson) and Chapman v. California (1967) 386 U.S. 18, 24 [87
S.Ct. 824, 17 L.Ed.2d 705] (Chapman).
Lavera next contends the trial court erred by relying on
inadmissible evidence in denying the petition. In raising this
argument, Lavera points to the trial court’s ruling that it was
appropriate to consider hearsay evidence from co-defendant
Carter, as recounted by an investigating officer at Lavera’s
preliminary hearing, stating Lavera provided ammunition for the
murder weapon prior to the commission of the robberies/murders.
Even assuming the trial court had erred in ruling this evidence
admissible, the purported error was harmless under both Watson
and Chapman. The court clearly stated although it was
considering that evidence, its “decision would not change if th[e]
evidence were not available to it as part of the record.”
Lavera lastly argues the denial of his petition should be
reversed due to the cumulative effect of all the purported errors.
We reject this contention. As discussed above, with respect to
each argument Lavera has raised on appeal, he has failed to
demonstrate prejudicial error. Moreover, the trial court, applying
the correct standard of proof as an independent finder of fact,
denied Lavera relief on the legally correct ground that the
prosecution had proven beyond a reasonable doubt Lavera was a
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major participant in the robberies who acted with reckless
indifference to human life. Because the court decided the case on
this correct ground, its order must be affirmed. (See People v.
Smithey (1999) 20 Cal.4th 936, 972 [“‘“‘[A] ruling or decision,
itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. If right upon any theory of the
law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
conclusion.’ [Citation.]” [Citation.]’”].)
DISPOSITION
The order denying Lavera’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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